Archive for the ‘Lawsuits’ Category

Judge uses head in rendering decision

An Illinois concussion class-action lawsuit, which is the first concussion class action against a state high school association, has been dismissed. The suit was filed by players against the Illinois High School Association. The judge ruled that IHSA has put policies in place to improve the safety of the game and minimize brain injury risks. Judge Leroy Martin, Jr. also stated that mandating costly requirements would only cause football to be unaffordable for many schools.

The judge recognized IHSA’s efforts to protect student athletes, and that it has no direct relationship to football or the plaintiffs. In addition, his written decision read in part, “Imposing broader liability on this defendant would certainly change the sport of football and potentially harm it or cause it to be abandoned.”

The suit against the IHSA is the first of its kind against an organization overseeing high school football. The plaintiffs were asking the court to supervise high school management of football head injuries and seeking payment for medical testing of former students who played from as far back as 2002. The suit’s lead plaintiff played from 2010 to 2014 and states he continues to suffer memory loss from injuries suffered during that time.

The arguments

IHSA argued that it’s not an NFL-like cash cow and has an annual revenue of only $10 million to cover over 40 sports and other activities among the state’s high schools. There would be no room in the budget to comply with any requirements imposed by the court, according Thomas Heiden, the attorney representing IHSA. He also argued that covering the payment the plaintiffs requested would lead to poorer schools shutting down their football programs and leaving only the students in wealthy schools eligible to participate.

According to plaintiffs’ attorney Joe Siprut, IHSA was giving the false notion that high school football is being threatened, and that improved safety would lead to its survival. He argued that the sport is already in danger since many fearful parents are not allowing their students to play.

In my opinion

This is a common sense ruling that may help to restore some balance against the media and research group-induced paranoia that evidently needs youth and high school football to be very dangerous to serve their interests. But, of course, this is just a trial court ruling and we probably have not seen the last of these. The good news is that the educational outreach programs and new risk management protocols seem to be having a positive impact.

Parents who pay want their child to play

It’s not yet what you’d call a trend, but there’s certainly an uptick in the number of parents filing lawsuits to get their child off the bench and onto the playing field.

Parents put out big bucks in registrations fees, equipment and travel costs associated with high school and youth club and travel teams, to say nothing of the time they invest attending practices and traveling to games. Many parents sacrifice their time and money for their children hoping to get the attention of college coaches, earn scholarships, and improve chances of college admissions – or even advance a professional athletic career. So, it’s understandable that some are dissatisfied when their child rides the bench more than he or she plays. In other words, they expect a payoff for their investment.

There is also an increase in lawsuits by parents of children who have been cut from teams, injured, disciplined by coaches or penalized by officials. But is hiring an attorney the answer? Many are questioning not only the attitude of entitlement, but how the children, who generally play for the fun and camaraderie, are affected by such lawsuits. What are the children learning when parents step in so heavily handed to smooth the way? Will they learn they’re entitled to play on a team simply because they attend practice? And are parents setting these athletes up to be bullied by other team members?

The increasingly competitive nature of youth sports has helped shift many parents’ focus from fun, exercise and sportsmanship to an investment in their children’s academic and professional futures. Youth sports officials are watching the case of a 16-year-old volleyball player. The girl earned spot on a volleyball league but ended up on the bench, so her parents filed suit against the volleyball association, alleging it won’t let the girl play or to switch teams, per the contract she signed.

General Liability policies, which typically only respond to certain lawsuits alleging bodily injury or property damage, don’t cover these types of lawsuits that allege loss of college scholarship or loss of pro career. Such lawsuits generally require a Professional Liability endorsement on a General Liability policy or a stand alone Professional Liability policy.

Source: Tracey Schelmetic, sportsdestinations.com, 21 Apr. 2015.

Lloyd’s of London claim denial based on applicant’s failure to disclose

MARQISE LEEPhoto credit: Kirby Lee, USA TODAY Sports

A former University of California football player’s landmark lawsuit against Lloyd’s of London is putting almost as much attention on sports disability insurance as the upcoming2015 NFL draft. The suit was filed by Marqise Lee, a former Trojan receiver who alleges Lloyd’s denied the $4.5 million disability insurance claim filed.

In 2013, potential first-round draft prospect Lee chose to sit out the NFL draft and remain playing for USC for one more year. He purchased loss of value and permanent disability insurance from Lloyd’s that would ensure him the difference between his rookie contract and a baseline of $9.6 million. Lee paid the $94,600 premium using funds from an NCAA-compliant loan taken out specifically for that purpose.

Lee was injured later that season, and was forced to sit out several games and play with injuries the rest of the season. With his draft prospects greatly diminished, he was a second-round pick in 2014 and signed a four-year $5.1 million contract, resulting in the $4.5 million difference he filed for in his claim.

Lloyd’s says Lee misrepresented his injury history by failing to disclose health-related information when he applied for the policy. Lee claims Lloyd’s breached the policy and made the denial in bad faith.

As with any insurance policy, all questions on applications must be completed fully and truthfully. Otherwise, the door is open for the insurance carrier to deny a claim based on fraud in the application. The basis for such denials is that the carrier would have rejected the application or charged a much higher premium had full information been disclosed in response to the question. When gray areas arise when answering application questions, a professional insurance agent can be an invaluable resource to help guide the applicant through this sometimes difficult maze.

Will sympathy impact legislation?

Too many communities have grieved debilitating injuries or premature deaths of high school athletes due to cardiac events. Many schools maintain automatic external defibrillators (AEDs) in an effort to prevent such tragedies.

There are no federal mandates regarding AEDs in public schools. Colorado, Florida, Georgia, Illinois, Iowa , Maryland, Michigan, Nevada, New Jersey, New York, Ohio, Pennsylvania, South Carolina, Virginia and Wisconsin have passed legislation requiring some schools to maintain portable defibrillators. California and Tennessee encourages placement in public schools.

What set the ball in motion

When an East County High School soccer player collapsed on the field, school personnel called 911 and performed CPR while waiting for emergency responders. The AED on campus was not utilized. Although paramedics were able to revive the student with a defibrillator and medication, he suffered severe brain damage and is in a vegetative state.

The lawsuit argues that that the school district is liable. Lower courts found in favor of the school district, acknowledging that the school is legally obligated to try to help any student who becomes injured or ill on school grounds but not to authorize or direct specific treatment such as the use of an AED.

Florida ruling could have huge impact

If the Florida Supreme Court overturns the lower court ruling, there is potential for every youth sports facility or program to be affected. This includes both public and private facilities and programs, such as those run by school districts, local and state governments, parks and universities. If this occurs, the next question will be whether AED training will be required of paid and volunteer coaches, referees, and organizers or risk being sued in the event of an episode such as the one in the current suit. And will these organizations be required to purchase other medical devices and provide training to avoid liability? And, of course, this could affect the cost of Liability Insurance, as typically is the case when claims are made.

Safety first at team pool parties

The swimming outing in a coach’s backyard or at a motel pool during a tournament is commonly the source of drowning or near-drowning incidents.

Drowning among youth baseball and softball players seems to be a prevalent problem in youth sports leagues. Of course, this is not isolated to just the baseball/softball arena, but more common most likely because of spring and summer activity.

An 8-year-old boy nearly drowned during his football team pool party in Arizona. His parents were in attendance but distracted for just long enough. Fortunately, the child was rescued by another alert parent. Unfortunately, most cases that we read about do not have such happy endings.

Accidents cannot always be prevented. It’s critical, however, to be vigilant when dealing with children in youth sports organizations. Most of the time, not every one of the children has a parent or guardian with them, especially when the team travels. These parents trust that the coaches and volunteers that they leave their children with will be monitoring their safety and bringing them back home in one piece.

Steps toward prevention

Simple precautions can be taken to lessen the risk of drowning.

Participation requires passing a swim test.

Instill in team members “the buddy system” so they’re accountable for each other.

Have at least one CPR-trained adult in attendance.

Prohibit alcohol consumption by adults at all youth parties.

Adults should not be involved in any distracting activity (such as grilling, reading, talking on phone)

Hire a certified lifeguard and require them to provide proof of adequate General Liability insurance.

The avoidance alternative

A number of Sadler Sports insurance clients have been sued for drowning or near drowning incidents resulting in very costly settlements. I’ve personally witnessed a number of incidents around pools where parents get caught up in conversations and lose their concentration for just a split second, and that’s all it takes.

In my opinion, the risks of serious injury and resulting lawsuits are so significant with swimming parties that such activities should be avoided as their risks outweigh their benefits. Avoidance of high risk activities is sports risk management 101 and I put swimming parties right up there with the use of 15 passenger vans (tip-over risks) and sleepovers (sex abuse and molestation risk).

Did coaches violate tackling guidelines?

Additional claims and the inclusion of more defendants are the reasons behind a lawsuit being refiled against Pop Warner. Donnovan Hill, 16, is the subject of a lawsuit that was filed after being hit during a Midget Orange Bowl championship game in 2011. Hill, 13 at the time, was left paralyzed after tackling a running back.

Details of the amended complaint

Hills mother, Crystal Dixon, amended her complaint to include lack of training for coaches and use of a tackling technique banned by the Pop Warner league. The suit names Pop Warner, league affiliates, coaches, and the local Pop Warner board of directors. Lawyers for Dixon say the defendants are liable for instruction in an incorrect tackling technique. Hill and others on the team complained of pain and questioned their coach about the safety of tackling by leading with the head. The plaintiff asserts that coaches ignored the players’ concerns.

Rob Carey of the law firm Hagens Berman Sobol Shapiro intends to prove that the coaches ignored the coaching guidelines on how players in the league are required to tackle. Carey will provide videotape evidence of Hill’s coaches specifically and repeatedly ordering their players to make hazardous tackles in clear violation of Pop Warner guidelines.

Preventing future incidents

Hill is a quadriplegic confined to a wheelchair and the subject of an ESPN video. Dixon’s attorneys suspect that coaches instructing players to use the dangerous head-first technique is widespread. They are seeking maximum damages allowable by law, including punitive damages and hope the case will help put an end to the dangerous practice.

Steps to preventing Legionnaires also reduce liability risks

The Centers for Disease Control estimates that 8,000 to 18,000 Americans are hospitalized each year after contracting Legionnaires’ disease. Legionnaires’ is a bacterium that thrives in water that is stagnant, unsterilized and warm. An individual can only contract the disease by breathing in vapors that carry the bacteria. It cannot be transmitted from person to person. Health club owners can decrease the risk of infecting their patrons by conducting regular water system maintenance.

A Memphis 24 Hour Fitness is currently embroiled in a $2 million lawsuit filed by Jerome Walsh after he contracted Legionnaires’ disease at the facility. He is one of three people hospitalized between May 21 and June 21, 2103.

The 24 Hour Fitness USA facility was regularly cleaned and maintained to industry standards, according to spokeswoman Robin Rootenberg. She also stated that the chemicals used for cleaning are industrial grade. A third party has been brought in to conduct testing on the infected area, which currently remains closed. The company is engaged in environmental remediation with a firm approved by the health department.

Health Club and Fitness Club Insurance

Proper insurance is critical to protecting your health and fitness club in the event of devastating claims, which can involve multiple individuals alleging extreme damages. However, many General Liability policies for health clubs include two exclusions which most eliminate coverage.

Pollution Exclusion: All General Liability policies include the standard Pollution Exclusion. A pollutant is defined as an irritant or contaminate in any form (solid, liquid, or gaseous). So far most courts are reluctant to deny coverage for Legionnaires’ lawsuits when carriers invoke this exclusion as they don’t consider the bacterium to be a pollutant.

Fungi or Bacteria Exclusion: Many General Liability policies include an endorsement that excludes fungi or bacteria that are present within a building or structure with the exception of those that are contained in a product intended for bodily consumption. Since Legionnaires’ disease is a bacterium, this exclusion could be invoked by the insurance carrier to deny coverage. However, some courts have upheld coverage depending on the exact location in the facility where the disease was contracted.

Ensure that your health club stays protected by adhering to all environmental and industry guidelines for the cleaning and maintenance of for your water systems, including Jacuzzis, saunas, and pools.

Consultants’ research and motives questioned

Dr. Mitchell Berger of the NFL’s Head, Neck, and Spine Committee was interviewed by ESPN’s “Outside the Lines” and spoke out against Boston University researchers Robert Cantu and Chris Nowinski. Berger accused the the two self interest by trying to profit from the hype they created with studies linking football and brain damage.

“The BU Group, their whole existence — their funding — relies on perpetuating that it’s a fact if you play football you’re going to have some form of cognitive impairment….So it’s very, very difficult to accept it because it is so biased,” said Berger.

Dr. Cantu aptly responded by saying, “Mitch Berger, with all due respect, is full of s—. No, not with respect.”

It should be interesting as the former players’ lawsuit against the NFL progresses to get a more balanced perspective on the issue because, so far, the media has only covered the plaintiffs’ allegations.

Spectator injuries not covered by Little League policy

New Jersey’s Elizabeth Lloyd, is suing for more than $150,000 in damages after being hit in the face by a baseball. Although Matthew Migliaccio was only 11 years old at the time of the incident, the lawsuit filed in April claims that Migliaccio’s overthrow from the bullpen was deliberate and reckless.

Lloyd is filing suit to cover for medical costs and pain and suffering, while her husband is suing for the loss of “services, society and consortium.”

The count alleging Migliaccio’s negligence is covered by the family’s Homeowner’s policy, but the other counts are not. Little League has denied any coverage, due to their accident policy only covering staff or players; spectators are not included.

In my opinion:

Little League is correct that spectator injuries are not covered by an Accident policy. However, “Accident like” benefits for spectator injuries up to a limit of $5,000 can be covered if the General Liability policy includes premises medical payments. Otherwise, if damages are greater than $5,000, the only recourse for an injured spectator is to sue. Such lawsuits would be covered under a General Liability policy under the Each Occurrence section. This case is similar to one that one of our league clients had about ten years ago when a spectator was hit in the jaw by an overthrow ball during pre game warm-ups. It was alleged that the league and coaches were negligent in allowing the players to form two lines for warm-ups where one line was too close to an unfenced spectator area. The carrier settled the case for around $300,000 but the damages were extensive.

How insurance and the law impact the concussion concerns

Will Oremus writes a well thought out explanation why concussion lawsuits will not end football. The main reasons cited are:

The initial medical expenses resulting from concussions and CTE are often not that high in most cases and symptoms take years to materialize. Therefore, the Accident Medical insurance carried by colleges, schools, and youth football organizations will not be hit hard since such policies limit payouts for medical bills to those that are incurred within one or two years from the date of the injury in most cases. Most CTE symptoms will show up years after a football career is finished and the Accident policy will be off the hook by that time. Therefore, these Accident carriers won’t take a big hit, which means that significant premium increases and market withdrawals are not likely.

The General Liability policies carried by schools and universities cover all the liability exposures such as slip-and-fall accidents, kids falling off playground equipment, injuries at school sponsored events, etc., and concussion lawsuits are only a small portion of the overall risks. In 2011, only 13 catastrophic brain injuries were reported out of 4.2 million football participants nationwide.

The concussion and CTE-related lawsuits in the NFL are currently covered under Workers’ Compensation insurance (which overall allows for the collection of lower benefits as compared to civil lawsuits which would be filed under a General Liability policy) even though some 1500 former NFL players have filed lawsuits challenging Workers’ Compensation as the exclusive remedy.

The links between concussions and CTE to depression and suicide are not yet rock solid, even though some limited studies show a connection between NFL participation and CTE.

In order to win a lawsuit, a player will need to prove negligence (1. Duty owed to act as reasonable governing bodies, administrators, trainers, coaches, etc. in protecting football players, 2. Breach of that duty by not following accepted safety standards, 3. Breach was proximate direct cause of the injury, and 4. Damages resulted). As a result of the difficulty in proving negligence, the NFL lawsuits are alleging that the league knew about the dangers of CTE, but hid it from the players.

In lawsuits against colleges and high schools, no one is claiming that they hid evidence that football resulted in CTE. As a result, the lawsuits against colleges high schools are based on failure to follow accepted safety standards on not removing possibly concussed players from games and allowing too early return to play which may result in second concussion syndrome.

Even if a public school or university as an entity, or a coach or other school employee is negligent, many states have governmental or sovereign immunity statutes that protect against liability or at least limit liability to an amount such as $300,000, $500,000, or $1,000,000, depending on the state’s version of the law. These immunity statutes can be defeated upon proving gross negligence.

Some state concussion statutes also limit the liability of coaches, trainers, and other medical professionals when complying with the requirements of the statute unless they are grossly negligent.

The assumption-of-risk defense to negligence can be a powerful tool if the players receive an adequate and documented risk warning of the dangers of concussions.

If universities and high schools follow the concussion safety standards outlined by state statutes or their state or national sanctioning/governing body, they have a high level of built-in protection.

The governing bodies such as the NFL, NCAA, and National Federation of State High School Associations will implement rule changes to provide more protection as more research results become available.